Feitel Law Firm


by Robert Feitel www.rfeitellaw.com

This blog focuses on the issue of immigration detainers and bond motions. The contents of this blog do not constitute legal advice, but rather is the starting point for thinking about the issue.

In this era of the coronavirus, many defense lawyers have been filing bond motions for release pending trial, as well as post conviction (by guilty plea or otherwise). When filing motions on behalf of foreign national defendants – whether they are extradites, or were in the United States without legal status – every defense lawyer needs to be ready to respond to the Government’s claim that there is an “immigration detainer” against them and thus, the Court should deny the bond motion automatically because if release is granted, the defendant will be sent to an immigration detention facility, or worse be sent back to their country of origin and thus, defeat United States jurisdiction over them.

With respect to the first argument, the law is on the defendant’s side. Under well settled caselaw, the existence of an immigration detainer has been deemed not to be a relevant legal factor in assessing risk of flight under the detention statute – and certainly not a dispositive one.

In United States v. Adomako, 150 F.Supp.2d 1302 (M.D. Fla. 2001), for example, the defendant was a foreign national arrested on charges of making false statements in a passport application. Although an immigration detainer had been lodged against him, in its analysis of whether he should be granted pretrial release the district court found that “Congress expressly instructs this Court to disregard the laws governing release in INS deportation proceedings when it determines the propriety of release or detention of a deportable alien pending trial.” 150 F.Supp.2d at 1302. Similarly, in United States v. Marinez-Patino, 2011 WL 902466 (N.D. Ill), the court rejected the Government’s argument that the existence of an immigration detainer was an automatic bar to pretrial release. “Thus, it is the risk that a defendant will flee, and not just his immigration status, that a court must consider under Section 3142(d).” See also United States v. Stepanyan, 2015 WL 4498572 (N.D. Cal)(“for the Government to argue that [the defendant’s] status as a deportable alien itself bars him from release is incompatible with the clear directives of [the federal detention statute]”). Accord United States v. Montoya-Vasquez, 2009 WL 103596 (D. Neb).

Thus, the mere fact that there is an immigration detainer against a defendant is not grounds to automatically deny a bond request. And it is possible to obtain release conditions for a defendant with an immigration detainer. But what about the practical consequences? First, an immigration detainer is not self-executing. It requests that the defendant be held for 48 hours and to notify federal immigration officials. The standard language in an ICE detainer looks like this:

In Galarza v. Szalcyzk, 745 F.3d 634, 639  (3d. 2014), the Third Circuit held that the immigration detainer is a request, not a binding order. Thus, a prison could ignore the detainer, although that seems unlikely with respect to inmates held at federal detention centers. If, however, DHS does not take the defendant into immigration custody within 48 hours (excluding weekends and holidays), the detainer is no longer effective and a motion for habeas corpus motion for immediate release would be appropriate. Also, it is a requirement that notice of the detainer be served on the defendant.

But if you have a federal judge that grants a defendant with an immigration detainer release conditions, you might want to ask the Government to “release” the detainer. Prosecutors routinely tell federal judges that they have no control over ICE detainers. That may be true in a very narrow legal sense, but I had a case before Judge Emmet Sullivan in the U.S. District Court for the District of Columbia, where he explained to the prosecution that the argument that they had no control over the ICE detainer  did not seem persuasive and that in his view, there was “one” federal government. Two days later the ICE  detainer was withdrawn. See DE 226; United States v. Vo, 13 Cr. 168 (D.D.C.).

There is some chance that if the defendant is sent to immigration custody, they could: (1) obtain a bond from an immigration judge; or (2) be deported back to their country of origin, thus defeating the criminal case. For an article about this see: https://www.bostonherald.com/2020/02/20/massachusetts-judges-blast-ice-for-deporting-local-defendants. Given these possibilities, a practical prosecutor might not want to antagonize a district court judge who just ordered a defendant released from custody.

As a more drastic alternative, I think it is possible to ask the district court for supplemental relief to effectuate its release order, invoking the Court’s plenary authority pursuant to the All Writs Act, 28 U.S.C. Section 1651(a) , which provides that “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” To be clear, I have reserved my right to make this argument, but have never asked a judge to do so. Why should an administrative detention order defeat a federal judge’s decision to grant release?


Robert Feitel is a former federal prosecutor and now defense attorney in private practice specializing in the representation of defendants in international criminal cases. He can be reached through his website: www.rfeitellaw.com